Council on Foreign Relations Coming Out Against Drone Strikes?

by Julian Ku

As a gauge of the temperature of the American foreign policy establishment, it is hard to do better than the Council on Foreign Relations.  And that uber-establishment organization has recently released a pretty hard-hitting critique of the Administration’s drone strike policy.  It is not a knee-jerk attack, but a substantive policy critique, part of which is that existing laws aren’t quite sufficient to regulate drone attacks properly.  Hence, the U.S. should:

■ explicitly state which legal principles apply—and do not apply—to
drone strikes and the procedural safeguards to ensure compliance to
build broader international consensus;
■■ begin discussions with emerging drone powers for a code of conduct
to develop common principles for how armed drones should be used
outside a state’s territory, which would address issues such as sovereignty,
proportionality, distinction, and appropriate legal framework;

Relatively uncontroversial stuff, although easier said than done.  I do sense a slight shift in the establishment, which is moving very slightly against drone strikes.  But it will be interesting to see whether this shift turns into a broader based policy change.

2 Responses

  1. seems to me that Koh et al. have stated that both the law of war paradigm and the self-defense paradigm are the “legal principles” (really, the laws) that apply, but many have claimed that there should be more transparency re: crieria used with respect to targeting decisions in addition to the general principles of distinction and propostionality under the laws of war and the law of self-defense.
    A new code of conduct? why? the laws of war and the law of self-defense already cover what is listed in the 2nd para. quoted. And drones are just a platform on which certain weaponry can be placed — and drones may come in increasingly smaller sizes — like model airplanes, dragonflies.

  2. Jordan, I think a good start would be getting the administration to explain how they determine who is a ‘militant’ (none of this military aged male rubbish), and the legal basis for killing American citizens (or indeed, anyone) outside a zone of armed conflict.
    I do agree with you though that there is no need for a ‘code of conduct’ with drone states.  Drones have not revolutionised the jus ad bellum – we still have to go back to Charter 2(4), Ch VII, Art 51 and Res 2625.  Similarly, proportionality and distinction are familiar IHL concepts that don’t really need to be rethought just because the plane firing a missile at someone doesn’t have a person sitting in it.

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